Obligation to explore refusal of antenatal screening

The case of Mordel -v- Royal Berkshire NHS Foundation Trust [2019] is an unusual decision relating to informed consent, where failure in the process was said to have caused the claimant’s mother to refuse screening which would otherwise have been accepted. This is a reversal of the usual situation where a patient asserts that they have undergone treatment which would have been declined had proper information been provided.

The mother, who was described by Mr Justice Jay as being ‘guileless, artless and devoid of sophistication’ ran a primary case that alleged she was not offered antenatal screening for Downs Syndrome, but that it was in any event her understanding that such tests had been carried out. The secondary case was that, if the mother had in fact been advised regarding screening and had declined it, the sonographer should have explored with her the reasons for this.

Mr Justice Jay commented that informed consent is a fundamental principle of the modern NHS and that it is the obligation of the clinician to secure it. It was not the ‘reasons’ for acceptance or rejection that needed to be unpicked, but instead ‘exploration’ was required and checking the patient understood the relevant issues. The judge did not accept that the sonographer’s role was limited to noting the decision one way or another. It was the sonographer’s duty to check the patient has been supplied with the NHS booklet, to ensure the patient understands the essential elements and purposes of the scanning for Down’s Syndrome; and to check there has been a discussion between patient and midwife.

Additionally, it was held that the midwife also failed to discharge her duty by not exploring why the combined test for Down’s Syndrome was not carried out.

The claimant succeeded on liability and damages will be assessed in due course.

In some respects the decision is entirely benign, confirming only that a fundamental part of any consent discussion requires the health professional to be satisfied as to the understanding of the patient. However, the clarification that there is an obligation on sonographers and midwives to explore the reasons for declining antenatal screening is perhaps somewhat more controversial. Maternity units need to pay careful regard to this ruling and to make sure staff are properly trained.

It will also be important to ensure that these discussions are properly recorded in the medical records and in that respect the limitations of electronic clerking systems (which may record a refusal of screening with a simple yes/no drop-down option) need to be appreciated and resolved.

Outside the obstetric field practitioners need to be aware that the standard of care goes far beyond a 'tick-box approach' to informed consent, and there is a need to ensure that records properly reflect the necessary discussions that have to take place around key treatment issues. There is no distinction between decisions to accept or refuse treatment/investigations.